Karri Satyanarayana & Ors. v. Pichika Veerraju & Ors.

1. The petitioners, 8 in all, are the same in each of these seven Civil Revision Petitions. All the petitioners, in these Civil Revision Petitions, claimed to have entered into oral agreements of sale in respect of certain landed property with the respondents and their predecessors-in-title. The petitioners, to begin with, filed O.S No. 145 of 1984 in the trial court for specific performance of the alleged oral agreement of sale dated 30-11-1964. In that suit the petitioners claimed that they were put in possession of the land in question in pursuance of the said alleged oral agreement of sale dated 30-11-1964. The defendants denied the alleged oral agreement of sale as well as the alleged delivery of possession of the and in question in pursuance of the alleged oral agreement of sale. The trial court, after due trial, dismissed the said suit. The plaintiffs aggrieved by the judgment and decree of the trial court made in O.S No. 145 of 1984 have preferred A.S No. 1404 of 1989 in this court and the same is pending. The defendants in O.S No. 145 of 1984, contending that by virtue of an ex parte interim injunction granted by the trial court in O.S No. 145 of 1984 in favour of the plaintiffs purported to have been in possession of the property in question after trespassing into the said property, filed O.S No. 105 of 1985 in the trial court for ejection of the plaintiffs in O.S No. 145 of 1984 from the schedule property, for possession of the schedule property and for damages for use and occupation of the schedule land. Subsequently the six more suits came to be filed in the trial court; O.S No. 96 of 1985, O.S No. 97 of 1985, and O.S No. 98 of 1985 for recovery of possession and damages and whereas O.S No. 110 of 1986, O.S No. 102 of 1986 and O.S No. 292 of 1992 for a decree of specific performance.

2. In A.S No. 1404 of 1989 filed in this court against the judgment and decree passed by the trial court in O.S No. 145 of 1984, C.M.P No. 7912 of 1989 was filed under Section 151 of C.P.C seeking stay of trial of the aforementioned seven suits pending on the file of the trial court. This Court passed an exparte order in the said C.M.P No. 7912 of 1989 initially staying trial of the suits. However, subsequently the exparte stay was vacated and the trial court was directed to proceed with the trial of the suits. After this event the petitioners in these revisions who are also the parties in the aforementioned seven suits filed applications under Section 10 of the Code of Civil Procedure for stay of trial of the suits pending disposal of A.S No. 1404 of 1989 pending on the file of this court. I.A No. 3076 of 1992 filed in O.S No. 105 of 1985 was dismissed by the learned trial Judge by his order dated 14-10-1992 mainly on the ground that the conditions, the existence of which, are necessary to stay the trial of a suit under Section 10 of Code of Civil Procedure do not exist and the matter in issue in O.S No. 105 of 1985 is not directly and substantially in issue in previous suit in O.S No. 145 of 1984. Against this order of rejection C.R.P No. 287 of 1993 is filed in this court. The I.As 3133 of 1992, 3131 of 1992, 3132 of 1992, 3134 of 1992, 3135 of 1992 and 3136 of 1992 filed under Section 10 of Code of Civil Procedure in O.S No. 98 of 1985, O.S No. 96 of 1985, O.S No. 97 of 1985, O.S No. 110 of 1986, O.S No. 102 of 1986 and O.S No. 292 of 1990 respectively for stay of trial of those suits were also rejected by the learned trial Judge by a common order Dt. 26-10-1992 mainly on the ground that the similar relief was sought in C.M.P No. 7912 of 1989 filed in A.S No. 1404 of 1989 in this court and though this court initially granted an exparte interim stay of trial of the suits, subsequently vacated the same directing the trial court to proceed with the trial of the suits and in that view of the matter stay of suits under Section 10 of the Code of Civil Procedure by the trial court is not permissible. In both the orders under revision in this batch of seven petitions the learned trial judge has also noted the fact that the application under Section 10 of Code of Civil Procedure came to be filed after evidence was over and the argument on behalf of the plaintiffs was concluded, as an additional reason to reject the applications. Against the rejections of those Interlocutory Applications Civil Revision Petitions 288 of 1993, 289 of 1993, 290 of 1993, 291 of 1993, 292 of 1993 and 293 of 1993 are preferred in this court. The petitioners-defendants, before the trial court contended that the issues involved in O.S No. 145 of 1984 and the aforementioned seven other suits are directly and substantially one and the same and since the issue raised in O.S No. 145 of 1984 are seized by this court in A.S No. 1404 of 1989, the trial of the remaining suits by the trial court is liable to be stayed as required under Section 10 of Code of Civil Procedure pending disposal of A.S No. 1404 of 1989. The facts-situation of each of these cases are substantially similar and the questions of law which arise for consideration are identical. Hence all these Civil Revision Petitioners were clubbed and heard together.

3. The learned counsel appearing for the petitioners firstly contended that the order under revision in C.R.P No. 287 of 1993 could not be sustained inasmuch as the learned trial judge failed to note that the matter in issue in O.S No. 145 of 1984 and the matter in issue in O.S No. 105 of 1985 are directly and substantially the same. The only reason given by the learned trial Judge that the application was filed under Section 10 Code of Civil Procedure at a belated stage could not be a valid and tenable ground to reject the application. The learned counsel for the petitioners secondly contended that the reason given by the trial Judge in passing the common order dt. 26-10-1992 in I.A No. 3133 of 1992 and other I.As is not at all tenable. The learned counsel would argue that the order made by this court in C.M.P No. 7912 of 1989 filed in A.S No. 1404 of 1989 should not have come in the way of the trial court to decide the applications filed under Section 10 of Code of Civil Procedure on merits. The learned counsel elaborating his submission would point out that the High Court has no power to stay trial of subsequent of suits pending on the file of the trial court and power of stay of suit is available only to that court before which the subsequent suit is pending. According to the learned counsel, though the High Court is a superior court compared to the court of Subordinate Judge and the judgment and decree passed in previous suit O.S No. 145 of 1984 are now seized by the High Court in A.S No. 1404 of 1989, nevertheless, it should be held that the previously instituted suit O.S No. 145 of 1984 is pending before the High Court, an appeal being a continuation of the original suit and in that view of the matter the trial court alone is competent to pass an order of stay of subsequent suits. The learned counsel would also argue that C.M.P No. 7912 of 1989 filed in A.S No. 1404 of 1989 in this court was misconceived and incompetent and therefore the order made in such application should be ignored that being one without jurisdiction. The learned counsel for the petitioners placed reliance on the decision of the Orissa High Court in Smt. Ambika Sahu… v. Smt. Sumitra Sahu…. (1) AIR 1990 Orissa 127, and that of the Bombay High Court in Nagappa Channappa Tambrali v. Ramsing Jessasing (2) AIR 1941 Bombay 160.

4. Sri C. Poornaiah, the learned senior counsel appearing for the respondents on the other hand would contend that no ground is made out to interfere with the orders under revision and the petitioners have failed to make out any error of jurisdiction in passing the orders under revision and there was also no material irregularity in exercising the jurisdiction conferred upon the trial court. Sri C. Poornaiah the learned senior counsel would seriously contest the argument of the learned counsel for the petitioners that this court has no jurisdiction to pass an order staying trial of the suits pending on the file of the court below. Placing reliance on the decision of the Madras High Court in Komarapa v. Ramaswamy (3) AIR 1948 Madras 150, and that of Gawhati High Court in Subhoram v. Dharameswar Das (4) AIR 1987 Gawhati 73, Sri Poornaiah, the learned senior counsel would contend that it is permissible for the High Court to stay trial of subsequent suits pending on the file of the court below in certain circumstances and therefore it could not be said that under no circumstances the High Court could validly stay trial of the subsequent suit pending before subordinate courts.

5. Section 10 provides that where a suit is instituted in a court to which the Code applies, the Court shall not proceed with the trial of the suit, if firstly, the matter in issue in the suit is also directly and substantially in issue in a previously instituted suit between the same parties, or their privies; secondly, the previously instituted suit is pending in the same Court in which the subsequent suit it brought or in any other Court in India (whether superior, inferior or co-ordinate), or in any Court beyond the limits of India established or continued by the Central Government, or before the Supreme Court and thirdly where the previously instituted suit is pending in any of the courts mentioned above, such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit. The object of Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. It is necessary to note that for Section 10 to apply, there must be identity of subject matter. Mere fact that one of the questions in issue is the same as in the other suit, would not make the subject matter identical. The use of the definite article ‘the’ in ‘the matter in issue’ occurring in Section 10 CPC suggests that the rule will not apply where only ‘a matter in issue’ is common.

6. The validity of the order under revision in C.R.P No. 287 of 1993 has to be examined in the light of the legal position stated above. The learned trial Judge in his order under revision has pointed out that the issues in O.S No. 105 of 1985 are not directly and substantially similar to the issues in O.S No. 145 of 1984. In support of this conclusion the learned trial Judge has pointed out in para 3 of the order that O.S No. 145 of 1984 was for the specific performance of the alleged oral agreement of sale dated 30-11-1964 whereas O.S No. 105 of 1985 is for ejection of the revision petitioners from schedule property, for possession of the schedule property and for damages for use and occupation of the schedule property. According to the plaintiffs-respondents, the petitioners-defendants trespassed into the schedule land and therefore they are seeking their eviction and also claim consequential reliefs. As rightly pointed out by the learned trial Judge it cannot be said that the matter in issue is directly and substantially the same in both the suits. There is no doubt that certain common issues do arise in both the suits but as already pointed out supra for Section 10 C.P.C to apply, there must be identity of subject matter and mere fact that one of the questions in issue is the same as in the other suit would not make the subject matter identical. If that is so, the provisions of Section 10 C.P.C are not attracted to the facts of the case and the application filed by the defendants under Section 10 C.P.C should be held to be incompetent. In addition to this reason, the learned trial Judge has also pointed out that the application came to be filed after the evidence on behalf of the petitioners' side was over and arguments of the plaintiffs' side were heard and after taking number of adjournments for advancing arguments on behalf of the defendants-revision petitioners. Therefore in the light of what is stated above it cannot be said that the order under revision suffers from any error of jurisdiction or material irregularity on the part of the trial court in exercising its jurisdiction. Therefore C.R.P No. 287 of 1993 is liable to be rejected.

7. This takes us to the question whether the court before which previously instituted suit is pending or the court before which the subsequently instituted suit is pending, should have the jurisdiction to stay of the trial of the subsequent suit. According to the learned counsel for the revision petitioners it is only the court before which subsequently instituted suit is pending shall have jurisdiction to pass an order staying trial of the suit and that power is not available to the court before which the previously instituted suit is pending, whether such court is superior or inferior or co-ordinate. Section 10 Code of Civii procedure reads as under:

“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.”

8. The language of Section 10 is quite precise, unambiguous and it does not admit more than one meaning. Section 10 CPC., as it is, does not speak about as to which court, whether the court before which the previously instituted suit or the subsequently instituted suit is pending can validly and legally pass an order staying of a suit. But the language of Section 10 is quite dear and it mandates the court before which the subsequently instituted suit is pending not to proceed with the trial of such suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties etc.

9. Lingaraja Rath, J. in Smt. Ambika Sahu v. Smt. Sumitra Sahu (1 Supra), held that Section 10 CPC stipulates a mandate to the courts not to proceed with the trial of any suit in which the matters in issue is also directly and substantially in issue in a previously instituted suit between the same parties and that the court in which the previous suit is pending is not competent to stay subsequent suit. His Lordship further held that when an application under Section 10 CPC is presented, the Court in which the subsequent suit is pending is to pass orders staying suit and not the court in which the previous suit is pending. In that case it is also held that even in a case where previously instituted suit is already disposed of by the trial court and the matter is carried in first or second appeal to the High Court the pendency of such appeal before the High Court would only mean that the previous suit is pending in the High Court and if there is any subsequent suit and if a party seeks to stay the trial of the subsequent suit, then such party should move the subordinate court where the subsequent suit is pending and not the High Court to the same effect is the decision of the Division Bench of Bombay High Court in Nagappa Channappa Tambrali v. Ramsing Jessasing (2 Supra). In that case Broomfield J. speaking for the Bench held that it is a reasonable inference flowing from provisions of Section 10 of C.P.C that an application asking the court not to proceed with the trial should normally be made to the court which is actually seized of the case. These two decisions and several other decisions cited before the Court make it abundantly clear that in a case whether the conditions prescribed in Section 10 of CPC co-exist for stay of suit, an application under Section 10 CPC should be made before the court where the subsequent suit is pending. This interpretation would be in consonance with the clear mandate of Section 10 CPC. That is not the end of the matter. The next question to be considered is whether the High Court can pass an order staying trial of the subsequent suit pending on the file of the subordinate court while exercising its appellate jurisdiction or revisional jurisdiction or inherent jurisdiction and if so under what circumstances. It is settled position in law that the High Court in exercise of its inherent power under Section 151 CPC can stay the trial of an independent suit in the course of other proceedings pending before it if the stay is necessary in the ends of justice or to prevent abuse of the process of the Court and the applicant has no other remedy. Only in a case where the applicant can get the suit stayed under Section 10 CPC., it is incumbent upon him to adopt that course before invoking inherent jurisdiction of the High Court under Section 151 CPC.

10. In the orders under revision the learned trial Judge has pointed out how “the matter in issue” in the present suits pending on the file of the courts below is not also directly and subsequently in issue in O.S No. 145/54 now seized by this court in 25 A.S No. 1404 of 1989. The reasons given by the learned trial judge to record such finding, in my considered opinion, are well founded. If that is so, an application under Section 10 is incompetent. The only remedy in such cases is to invoke the inherent jurisdiction of the court. In Komarappa v. Ramaswamy (3 Supra), the Madras High Court held that where the disposal of an appeal in one suit pending before the High Court wilt to a very large extent have an important bearing upon the material questions at issue in another independent suit, the High Court can stay it by virtue of its inherent power under Section 151 of CPC in the interest of justice when the provisions of Section 10 are not applicable. I am in respectful agreement with the view taken by the Madras High Court. A Division Bench of the Gowhati High Court in Subho Ram v. Dharameswar Das (4 Supra) held that under those circumstances where the requirements of Section 10 CPC are not satisfied, recourse to Section 151 CPC is permissible for staying a suit or for injuncting a plaintiff from proceeding with the case, provided the Court is satisfied that such a recourse is necessary in the ends of justice or to prevent abuse of the process of the Court and it is not violative of any express and specific provision of the Civil Procedure Code or any other law applicable to the case to be stayed or injuncted. In the light of the position of law noted above and in view of my finding that “the matter in issue” in O.S No. 145 of 1984 and in the subsequent suits which are pending on the file of the court below is not directly or substantially similar, Section 10 of Code of Civil Procedure is not applicable and no party can validly invoke that Section for stay of suit. In such an event, the only recourse to a party is to approach the court invoking inherent power under Section 151 CPC. In the present case, as pointed out supra, C.M.P No. 7912 of 1989 was filed under Section 151 CPC in A.S No. 1404 of 1989. For the reasons stated supra, it cannot be said that CMP was incompetent under Section 151 CPC. This Court exercising its inherent power initially granted an exparte stay of trial of the suits and subsequently on appearance of the respondents therein vacated the exparte interim stay and directed the trial court to proceed with the trial of the suits. Therefore the argument of the learned counsel for the petitioners that the C.M.P No. 7912 of 1989 filed in A.S No. 1404 of 1989 was incompetent and consequently the order made by the High Court was also incompetent and without jurisdiction is not at all acceptable to the Court. There is another formidable reason not to interfere with the orders under revision. The learned trial Judge in his common order dated 26-10-1985 has pointed out that this court while vacating the exparte interim order of stay in CMAP No. 7912 of 1989 directed the trial court to take up the trial of the suits and it is not the case of the revision petitioners that order was appealed against. Therefore, the direction issued by this court to the trial court to take up the trial of the suits stands and operates and therefore the question to be considered is that on the face of the direction issued by this court to the trial court to take up the trial of the suits, whether it is permissible for the trial court to pass stay of suits in the applications filed by the revision petitioners defendants under Section 10 CPC in derogation of the order made by this court. The answer to this question should be emphatic ‘No’. Looking from that angle also no exception can be taken to the orders made by the trial court rejecting the applications.

11. In the result and for the foregoing reasons all the revision petition are dismissed. In the facts and circumstances of the case the parties are directed to bear their own costs. The trial court is directed to dispose of the suits expeditiously.